Opinion
No. 14-06-00488-CV
Opinion filed October 13, 2006.
Original Proceeding Writ of Mandamus.
Petition for Writ of Mandamus Dismissed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
MEMORANDUM OPINION
On May 31, 2006, relators filed a "Petition for Writ of Mandamus En Banc" in this Court. See TEX. GOV'T CODE ANN '22.221 (Vernon 2004); see also TEX. R. APP. P. 52.1. Relators challenge the April 28, 2006, and May 3, 2006, orders of the Honorable Judge Guy Herman, and the May 3, 2006, order of the Honorable Judge Russell Austin. On June 20, 2006, Judge Herman filed a conditional motion to dismiss this mandamus proceeding on the ground that the proceeding is moot.
En Banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration. See Tex.R.App.P. 41.2(c). Relators' request for en banc review was presented to all justices of the en banc court, except one recused member. No members of the court requested a vote to determine whether this case will be heard en banc; therefore, no vote need be taken, and a panel of this court will consider the case. See id.
The motions to recuse challenged in this proceeding arise from trial court cause number 355,095-402, styled Mylus James Walker v. Susan C. Norman and Peter J. Riga. This is a lawsuit filed by Mylus James Walker, as guardian of Perry Lee Whatley, against Susan Norman and Peter Riga for declaratory relief and recovery of funds. On June 1, 2006, a panel of this court ruled that the orders appointing Walker as temporary and permanent guardian of Perry Whatley, signed October 13, 2005, and December 14, 2005, are void. In re Whatley, No. 14-05-01222-CV, 2006 WL 1490161, at *4 (Tex.App.BHouston [14th Dist.] June 1, 2006, orig. proceeding) (mem. op.). Because these guardianship orders are void, Walker does not possess the capacity pursuant to those orders to file and maintain suit as Whatley's guardian. Lack of capacity typically must be challenged with a verified plea in abatement or it is waived, unless, as in this case, Walker's lack of capacity appears of record. See TEX. R. CIV. P. 93.
A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings. In re Kellogg Brown Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). Because all motions to recuse challenged in this proceeding arise from the guardian's suit, and the guardian no longer possesses the capacity, pursuant to the guardianship orders of October 13, 2005, and December 14, 2005, to sue and maintain the suit, and this lack of capacity appears of record, a controversy no longer exists in this proceeding.
Accordingly, we grant Judge Herman's motion to dismiss to the extent he claims the mandamus proceeding is moot. The petition for writ of mandamus is ordered dismissed.